Cranford v. Commissioner of Social Security

Filing 11

REPORT AND RECOMMENDATIONS: The Commissioner's non-disability finding be reversed and this case be remanded to the Commissioner for payment of benefits; and the case be terminated on the docket of this Court. Objections to R&R due by 7/5/2017. Signed by Magistrate Judge Sharon L. Ovington on 6/20/2017. (lek)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JASMINE CRANFORD,
Plaintiff,
vs.
NANCY A. BERRYHILL,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:16-cv-366
:
: District Judge Walter H. Rice
: Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS1
I.

Introduction
Plaintiff Jasmine Cranford brings this case challenging the Social Security

Administration’s denial of her application for Supplemental Security Income. She
applied for benefits on June 28, 2012, asserting that she could not work a substantial paid
job. Administrative Law Judge (ALJ) Elizabeth A. Motta concluded that she was not
eligible for benefits because she is not under a “disability” as defined in the Social
Security Act.
The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #7), the
Commissioner’s Memorandum in Opposition (Doc. #9), Plaintiff’s Reply (Doc. #10), the
administrative record (Doc. #6), and the record as a whole.

1

Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for
further proceedings. The Commissioner asks the Court to affirm ALJ Motta’s nondisability decision.
II.

Background
Plaintiff asserts that she has been under a “disability” since July 1, 1998. She was

eight years old at that time and was therefore considered a “younger person” under Social
Security Regulations. 20 C.F.R. § 416.963(c). She has a limited education. 20 C.F.R. §
416.964(b)(3).
A.

Plaintiff’s Testimony

Plaintiff testified at the hearing before ALJ Motta that she has three children who
are seven years old, two years old, and one year old. (Doc. #6, PageID #71). Her mother
has custody of the oldest child, and her two younger children are in foster case. Id. She
stated that she does not see any of her children. Id. at 75.
Plaintiff has problems with depression and anxiety. Id. at 83. She cannot sit in
one spot and pay attention to only one thing for thirty minutes. Id. at 83-84. Plaintiff last
received treatment from Nova House in 2011. Id. at 78. She used to have problems with
cocaine, crack cocaine, and marijuana but has been clean for two years. Id. at 78-79.
Plaintiff is supposed to take medication for ADHD and anxiety but does not
because it makes her drowsy. Id. at 77. When the ALJ stated that she appeared drowsy
at the hearing, she said that the medications make her uptight. Id. She further explained
that she was drowsy at the hearing because she was up late the night before. Id.

2

Plaintiff dropped out of high school in the ninth grade and has not obtained a
GED. Id. at 72-73. In school, she was in special education classes. Id. at 82. Her grades
were “up and down.” Id. She did not get along with other kids at school. Id. She
fought—sometimes physically—with other kids and argued with teachers as well. Id.
Plaintiff lives in an apartment by herself. Id. at 70. She often stays with friends
for days at a time because she does not like to be by herself. Id. at 73. She spends a lot
of her time with her boyfriend as well. Id. at 74. When she is with her friends, they
watch movies. Id. at 75. She does not have a normal schedule. Id. at 84. She does not
wake up or go to bed at the same time every day, and she sometimes sleeps during the
day. Id.
Plaintiff’s father reminds her to pay her bills on time and helps her shop for
groceries. Id. at 80. He also reminds her of her appointments and sometimes takes her to
them. Id. at 84. Plaintiff is able to understand mail if it is really simple but otherwise has
to have someone, usually her father, read it for her. Id. at 83. She is able to make
sandwiches, use the microwave, and wash dishes. Id. at 74. When she tries to cook on
the stove, she gets easily sidetracked and forgets the food on the stove. Id. at 81. Her
friend does her laundry for her. Id. at 74. Her neighbor helps her clean her apartment.
Id. at 81. She only uses computers for playing games, but she knows how to send an email. Id. at 75-76. However, her spelling is not very good, and she does not send emails.
Id. at 81. She has never had a driver’s license but can use public transportation. Id. at 72,
75.

3

B.

Plaintiff’s Father’s Testimony

Plaintiff’s father, Jeffrey Van Cranford, Sr., also testified at the hearing before
ALJ Motta. Id. at 85. He testified that he sees his daughter almost every day and assists
her with “pretty much everything, organizing her day with the kids, or things that she
needs, her appointments, her doctor’s appointments, her mental health appointments, and
things like that.” Id. at 86. He explained that Plaintiff sees her son on Mondays and her
daughter on Mondays, Wednesdays, and Fridays. Id. at 92-93. He has visitation and is
allowed to take them to his house, and then she visits. Id. at 93. Plaintiff is not allowed
to take the children by herself. Id. He helps her interact and play with her children. Id.
at 95. Mr. Cranford also takes Plaintiff to the grocery store to help her choose healthy
food and figure out her money. Id. at 86-87. If he did not help her at the grocery, he
thought she would likely get things she wanted versus things she needed. Id. at 90.
Although Plaintiff is “pretty good at keeping her house clean …,” he sometimes helps her
with washing dishes, putting clothes away, and organizing her stuff. Id. at 88.
Mr. Cranford testified that Plaintiff started having trouble in school when she was
five years old. Id. She had difficulty staying focused and did not listen to authority. Id.
at 88-89. As a result, she spent half the day at kindergarten and half at Good Samaritan
Behavioral Health. Id. at 89. Plaintiff struggled with grades throughout school but she
“was pretty smart in some areas, … like her long-term memory was good. She can
remember things. But her short-term memory, she may not remember.” Id. at 89-90.
She had some problems getting along with her peers and teachers. Id. at 89.

4

Mr. Cranford explained that Plaintiff was in treatment at Cam2 and last attended
treatment in March. Id. at 90-91. He does not think that she completed her treatment.
Id. at 91. Plaintiff took Ritalin for attention deficit disorder but she stopped taking it
because she did not think it was working. Id. at 92. She then began taking Strattera, and
Mr. Cranford thought it worked but he had to watch her put the pill in her mouth and
swallow it. Id. He thought she might have had medication for depression or anxiety but
he was not sure of whether she took it. Id. 92. Plaintiff sleeps a lot, and Mr. Cranford
believes it is due to her lifestyle and “maybe some depression.” Id. at 95.
C.

Medical Opinions
i.

Mary Ann Jones, Ph.D.

Dr. Jones first evaluated Plaintiff in November 2012. Id. at 473. Dr. Jones noted
that Plaintiff’s grooming was good, her facial expressions were dull to anxious, and she
was cooperative. Id. at 475. Her conversation was relevant but only semi-coherent. Id.
She had “very minimal voice inflection. She proved marginal historian. Stream of
thought proved retarded. Thought association proved fragmented and concrete.” Id. at
476. Dr. Jones indicated that Plaintiff’s demeanor was resigned to apathetic and her
affect was sad to blunted. Id. Her degree of consciousness varied between distracted to
vague, and she was minimally oriented to person, place, time, and circumstance. Id.
Dr. Jones diagnosed major depression, attention-deficit hyperactivity disorder,
anxiety disorder, not otherwise specified (NOS), cannabis and cocaine abuse in nine2

Mr. Cranford is referring to the Consumer Advocacy Model (CAM) Program. See Doc. #6, PageID #s
682-719.

5

month remission. Id. at 478. She assigned a global assessment of functioning (GAF)
score of fifty-two, indicating moderate symptoms. Id. Dr. Jones assessed Plaintiff as
functioning in the mild range of mental retardation and indicated that as a result, “she can
be expected to have considerable difficulty in understanding, remembering, and carrying
out instructions in a work setting.” Id. at 479. Additionally, Dr. Jones noted that she is
not able to stay focused and would have difficulty maintaining appropriate attention and
concentration and sustaining adequate persistence and pace in order to perform various
work tasks. Id. Plaintiff would also likely have limitations in responding appropriately
to supervision and to coworkers in a work setting and in coping appropriately to common
workplace stressors. Id.
In January 2013, Dr. Jones administered the Wechsler Adult Intelligence Scale –
Fourth Edition (WAIS-IV). Id. at 431. Plaintiff’s full-scale intelligence quotient was 66,
which falls in the mild range of mental retardation. Id. She achieved a verbal
comprehension index of 70 (borderline range); perceptual reasoning index of 67 (mild
range); working memory index of 69 (mild range); and processing speed index of 81 (low
average range). Id. Dr. Jones noted, “These test results in no way significantly alter the
conclusions of her previous [November 2012] exam ….” Id. at 432.
ii.

Bonnie Katz, Ph.D., & Paul Tangeman, Ph.D.

On January 19, 2013, Dr. Katz reviewed Plaintiff’s medical records. Id. at 112-23.
She found that Plaintiff has four severe impairments: affective disorders, ADD/ADHD,
anxiety disorders, and drugs, substance addiction disorders. Id. at 117. Additionally,
Plaintiff has a moderate restriction of activities of daily living; moderate difficulties in
6

maintaining social functioning; and moderate difficulties in maintaining concentration,
persistence, or pace. Id. She has no repeated episodes of decompensation. Id.
Dr. Katz opined Plaintiff is markedly limited in her ability to understand,
remember, and carry out detailed instructions. Id. at 119. However, “She can
understand, remember, and carry out simple routine tasks that do not require her to
sustain close consistent [attention/concentration] over an extended period, nor to meet
fast-paced production standards. [She] can make very simple decisions but would be
unable to solve problems or independently manage competing task demands.” Id. at 120.
Plaintiff is also markedly limited in her ability to interact appropriately with the general
public, but she is “able to interact with a small number of familiar others on a limited,
brief[,] and superficial basis, in a nonpublic setting.” Id. at 120. Further, she can “adapt
to infrequent changes in routine where instructions for new tasks are repeated and
demonstrated until [she] masters them.” Id. at 121. Dr. Katz concluded that Plaintiff is
not disabled. Id. at 122.
On May 8, 2013, Dr. Tangeman reviewed Plaintiff’s records and agreed with Dr.
Katz’s findings. Id. at 125-37.
III.

Standard of Review
The Social Security Administration provides Supplemental Security Income to

individuals who are under a “disability,” among other eligibility requirements. Bowen v.
City of New York, 476 U.S. 467, 470 (1986); see 42 U.S.C. § 1382(a). The term
“disability”—as defined by the Social Security Act—has specialized meaning of limited
scope. It encompasses “any medically determinable physical or mental impairment” that
7

precludes an applicant from performing a significant paid job—i.e., “substantial gainful
activity,” in Social Security lexicon. 42 U.S.C. § 1382c(a)(3)(A); see Bowen, 476 U.S. at
469-70.
Judicial review of an ALJ’s non-disability decision proceeds along two lines:
“whether the ALJ applied the correct legal standards and whether the findings of the ALJ
are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir.
2007). Review for substantial evidence is not driven by whether the Court agrees or
disagrees with the ALJ’s factual findings or by whether the administrative record
contains evidence contrary to those factual findings. Gentry v. Comm’r of Soc. Sec., 741
F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007). Instead, the ALJ’s factual findings are upheld if the substantial-evidence standard
is met—that is, “if a ‘reasonable mind might accept the relevant evidence as adequate to
support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r of Soc.
Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more than a
scintilla of evidence but less than a preponderance . . . .” Rogers, 486 F.3d at 241
(citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722.
The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal
criteria—may result in reversal even when the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647,
651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial
evidence, ‘a decision of the Commissioner will not be upheld where the SSA fails to
8

follow its own regulations and where that error prejudices a claimant on the merits or
deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting in part
Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47
(6th Cir. 2004)).
IV.

The ALJ’s Decision
As noted previously, it fell to ALJ Motta to evaluate the evidence connected to

Plaintiff’s application for benefits. She did so by considering each of the five sequential
steps set forth in the Social Security regulations. See 20 C.F.R. § 416.920. She reached
the following main conclusions:
Step 1:

Plaintiff has not engaged in substantial gainful employment since June
28, 2012.

Step 2:

She has the severe impairments of polysubstance abuse disorder,
substance-induced mood disorder, and learning disorder (and/or
attention deficit disorder).

Step 3:

She does not have an impairment or combination of impairments that
meets or equals the severity of one in the Commissioner’s Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.

Step 4:

Her residual functional capacity, or the most she could despite her
impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239
(6th Cir. 2002), consists of “a full range of work at any level of
exertion except limited to: simple, repetitive tasks; low stress work
with no strict production quotas or fast paced work and only routine
work with few changes in the work setting; no contact with the public
as part of job duties; only occasional contact with coworkers,
including no teamwork; no exposure to hazards, such as moving or
dangerous machinery or working at unprotected heights and no
climbing of ladders, ropes, and scaffolds.”

Step 4:

She is unable to perform any of her past relevant work.

9

Step 5:

She could perform a significant number of jobs that exist in the
national economy.

(Doc. #6, PageID #s 41-58). These main findings led the ALJ to ultimately conclude that
Plaintiff was not under a benefits-qualifying disability. Id. at 57.
V.

Discussion
Plaintiff contends that the ALJ erred in finding that Plaintiff’s impairment did not

meet or medically equal Listing 12.05C. She also argues that the ALJ erred in weighing
the medical opinion evidence and failed to consider her substance abuse/dependence
under the correct legal standard. The Commissioner maintains that substantial evidence
supports the ALJ’s finding that Plaintiff’s impairments did not meet or medically equal a
listing, her evaluation of medical opinions, and her assessment of Plaintiff’s substance
abuse/dependence.
A.

Listing 12.05C

ALJ Motta found that Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments
in 20 C.F.R. Part 404, Subpt. P, Appendix 1. (Doc. #6, PageID #44). More specifically,
the ALJ concluded, “‘paragraph C’ criteria of listing 12.05 are not met because [Plaintiff]
does not have a valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and significant work-related
limitation of function.” Id. at 46.

10

To meet the listing for intellectual disability,3 an individual’s impairment must
satisfy the diagnostic description in the introductory paragraph and any of the four sets of
criteria. 20 C.F.R. § 404, Subpt. P, App. 1, § 12.00A. Listing 12.05C provides:
Intellectual disability refers to significantly subaverage
general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental
period; i.e., the evidence demonstrates or supports onset of
the impairment before age 22.
The required level of severity for this disorder is met when
the requirements in A, B, C, or D are satisfied.
. . .
C. A valid verbal, performance, or full scale IQ of 60 through
70 and a physical or other mental impairment imposing an
additional and significant work-related limitation of
function[.]
20 C.F.R. § 404, Subpt. P, App. 1, § 12.05C. Thus, a plaintiff seeking to establish an
intellectual disability under Listing 12.05C must prove three elements: (1) an IQ score
between 60 and 70; (2) a second impairment causing work-related limitations; and (3)
subaverage general intellectual functioning with deficits in adaptive functioning that
began before age 22. Id.
IQ Score
In her first evaluation, Dr. Jones opined, “[Plaintiff] was informally assessed as
functioning in the mild range of mental retardation. (She may require an intelligence

3

On August 1, 2013, the Social Security Administration amended Listing 12.05 by replacing the words
“mental retardation” with “intellectual disability.” See 78 F. Reg. 46,499, 46,501 (to be codified at 20
C.F.R. § 404, subpt. P, app. 1). The Administration stated that the change “does not affect the actual
medical definition of the disorder or available programs or services.” Id. at 46,500. Thus, the amendment
does not effect a substantive change, and the words “mental retardation” and “intellectual disability” have
the same meaning and are sometimes used interchangeably.

11

test).” (Doc. #6, PageID #479). On January 10, 2013, Dr. Jones administered the WAISIV, noting Plaintiff “willingly attempted assigned tasks and appeared to give a good
effort throughout the evaluative process.” Id. at 431. She found that Plaintiff “achieved a
full-scale intelligence quotient of 66, which falls in the mild range of mental retardation.”
Id. Dr. Jones noted, “These test results in no way significantly alter the conclusions of
her previous exam ….” Id. at 432.
The ALJ acknowledged the results of the WAIS-IV but disregarded them because
Dr. Jones did not include a diagnosis of mental retardation or borderline intellectual
functioning in her evaluation and did not amend it to include that diagnosis after she
administered the WAIS-IV. Id. at 47.
Listing 12.05C, however, does not require that a doctor diagnose mental
retardation or borderline intellectual functioning; it requires “[a] valid verbal,
performance, or full scale IQ of 60 through 70 ….” 20 C.F.R. § 404, Subpt. P, App. 1, §
12.05C; see also Lingo v. Colvin, No. 3:13–cv–452, 2013 WL 6859870, at *5 (N.D. Ohio
Dec. 29, 2013) (“There is no authority for the proposition that [a claimant] must be able
to point to a diagnosis of mental retardation in order to satisfy [listing 12.05].”) (quoting
Thomas v. Comm’r of Soc. Sec., No. 08–cv–1365, 2010 WL 1254788, *11 (N.D. Ohio
Mar. 25, 2010)); Wilkerson v. Comm’r of Soc. Sec., No. 3:08–cv–419, 2010 WL 817307,
at *13 (S.D. Ohio March 5, 2010) (“Requiring such a diagnosis in cases of mental
retardation would place formalism over substantive evidence.”). Further, there was no
reason for Dr. Jones to amend her first opinion. Her informal assessment of Plaintiff

12

functioning in the mild range of mental retardation was affirmed by the results of the
WAIS-IV.
Accordingly, Plaintiff’s full-scale I.Q. score clearly falls into the range required by
Listing 12.05C.
Additional Impairments
Plaintiff has also shown that she has other impairments that impose an additional
and significant work-related limitation of function. The ALJ’s decision itself
acknowledges the existence of such limitations. The ALJ found that her severe
impairments include polysubstance abuse disorder, substance-induced mood disorder,
and learning disorder (and/or attention deficit disorder). (Doc. #6, PageID #43).
The ALJ’s findings demonstrate that Plaintiff satisfies Listing 12.05C’s requirement of an
“additional and significant work-related limitation of function.” The Regulations explain,
“For paragraph [12.05]C, we will assess the degree of functional limitation the additional
impairment(s) imposes to determine if it significantly limits your physical or mental
ability to do basic work activities, i.e., is a ‘severe’ impairment(s), as defined in §§
404.1520(c) and 416.920(c).” 20 C.F.R. § 404, Subpt. P, App. 1, § 12.00(A).
Consequently, the ALJ’s determination at Step 2 that Plaintiff had several “severe”
impairments under § 416.920(c) effectively determined that these impairments imposed
“additional and significant work-related limitation of function” in satisfaction of Listing
12.05C.

13

Adaptive Functioning
The introductory paragraph of Listing 12.05 requires that the individual show
“significantly subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period.” 20 C.F.R. § 404,
Subpt. P, App. 1, § 12.05. “Adaptive functioning refers to how effectively individuals
cope with common life demands and how well they meet the standards of personal
independence expected of someone in their particular age group, sociocultural
background, and community setting.” Diagnostic and Statistical Manual of Mental
Disorders, 4th ed., Text Revision, at p. 42. Additionally, “The American Psychiatric
Association defines adaptive-skills limitations as ‘concurrent deficits or impairments . . .
in at least two of the following areas: communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction, functional
academic skills, work, leisure, health, and safety.’” Hayes v. Comm’r of Soc. Sec., 357 F.
App’x 672, 677 (6th Cir. 2009) (quoting DSM-IV-TR at 49).
The record contains significant evidence of Plaintiff’s deficits in adaptive
functioning. Her counseling and school records detail her difficulties with both
academics and social skills. When Plaintiff was only five years old, she underwent a
psychological evaluation by Dr. Ramey at Children’s Medical Center because she was
sexually acting out and doing poorly in her kindergarten class. (Doc. #6, PageID #486).
Additionally, she had several behavioral difficulties including serious temper tantrums
and non-compliance. Id. Dr. Ramey diagnosed adjustment disorder with mixed

14

disturbance of emotions and conduct. Id. at 489. He noted, “the results of this evaluation
suggest significant concern regarding [Plaintiff’s] functioning at this time.
At six years old, Plaintiff continued to struggle in kindergarten. Id. at 633. She
had a “poor attitude about school, curses at the teacher, gets in numerous fights, and is
sent to the office on a daily basis.” Id. Teachers and staff noted that she had a “[l]ack of
academic progress, [and] serious student misconduct to the point of endangering other
children and disrupting the learning process.” Id. at 591.
In August 1999, Plaintiff underwent testing at Dayton Christian Schools for
placement. On the Woodcock-Johnson Tests of Cognitive Abilities – Revised, Plaintiff
scored a broad cognitive ability of eighty-six, which is in the low-average range. Id. at
298. She demonstrated relative strength in auditory processing and long-term memory
and relative weakness in general knowledge and comprehension. Id. Further, on an
achievement test, Plaintiff performed below average in reading skills, reading
comprehension, math calculation, math reasoning, and written language. Id.
In March 2001, when Plaintiff was in fifth grade, the Woodcock-Johnson Tests of
Achievement-Revised showed Plaintiff lagging far behind: her math reasoning grade
equivalent was 2.8, written language grade equivalent was 3.2, and reading skills grade
equivalent was 4.3. Id. at 346.
In February 2002, when Plaintiff was eleven years old, her special education
teacher noted she did not get along with other children on a daily to weekly basis. Id. at
341. Further, Plaintiff “is either very good, cooperative, [and] follows directions or she is
very bad, rebellious, defiant, [and] disruptive.” Id.
15

During the 2006-2007 school year at the Mid Ohio Educational Service Center
First School, Plaintiff failed six of twelve classes. Id. at 413. During the 2007-2008
school year at the ISUS Institutes, Plaintiff failed seven of ten classes. Id. at 414.
Dr. Katz and Dr. Tangeman, the State agency record-reviewing physicians, opined
that she was markedly limited in her abilities to understand and remember detailed
instructions; carry out detailed instructions; and interact appropriately with the general
public. Id. at 119-20, 133-34. They also found that she was moderately limited in many
areas, including her abilities to maintain attention and concentration for extended periods;
make simple work-related decisions; accept instructions and respond appropriately to
criticism from supervisors; and respond appropriately to changes in the work setting. Id
The ALJ herself found that Plaintiff has a mild restriction of activities of daily
living and moderate difficulties in social functioning and concentration, persistence, or
pace. Id at 44-45. Further, in formulating Plaintiff’s residual functional capacity, the
ALJ limited Plaintiff to “no contact with the public as part of job duties; only occasional
contact with coworkers, including no teamwork ….” Id. at 48. This suggests that
Plaintiff does have deficits in communication and social/interpersonal skills.
Significantly, Plaintiff receipt of Social Security benefits as a child from 1998 through
2009 illustrates that at least some deficits in functioning manifested before she turned
twenty-two years old.
Together, this evidence shows Plaintiff’s significant deficits in adaptive
functioning as Listing 12.05C requires.

16

For the above reasons, Plaintiff’s Statement of Errors is well taken.4
B.

Judicial Award of Benefits

Remand is warranted when the ALJ’s decision is unsupported by substantial
evidence or when the ALJ failed to follow the Administration’s own regulations and that
shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial
right. Bowen, 478 F.3d at 746. Remand for an ALJ’s failure to follow the regulations
might arise, for example, when the ALJ failed to provide “good reasons” for rejecting a
treating medical source’s opinions, see Wilson, 378 F.3d at 545-47; failed to consider
certain evidence, such as a treating source’s opinions, see Bowen, 478 F.3d at 747-50;
failed to consider the combined effect of the plaintiff’s impairments, see Gentry, 741 F.3d
at 725-26; or failed to provide specific reasons supported by substantial evidence for
finding the plaintiff=s credibility lacking, Rogers, 486 F.3d at 249.
Under sentence four of 42 U.S.C. § 405(g), the Court has authority to affirm,
modify, or reverse the Commissioner’s decision “with or without remanding the cause for
rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand
under sentence four may result in the need for further proceedings or an immediate award
of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041 (6th
Cir. 1994). The latter is warranted “only where the evidence of disability is
overwhelming or where the evidence of disability is strong while contrary evidence is

4

In light of the above discussion, and the resulting need to remand this case, an in-depth analysis of
Plaintiff’s other challenges to the ALJ’s decision is unwarranted.

17

lacking.” Felisky, 35 F.3d at 1041 (quoting Faucher v. Sec’y of Health & Human Servs.,
17 F.3d 171, 176 (6th Cir. 1994).
In the present case, the evidence of record establishes that a remand for award of
benefits is warranted because the record contains overwhelming evidence, or strong
evidence while contrary evidence is lacking, that Plaintiff met the criteria of Listing
12.05C.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be reversed and this case
be remanded to the Commissioner under sentence four of 42 U.S.C.
' 405(g) for payment of benefits; and

2.

The case be terminated on the docket of this Court.

Date: June 20, 2017

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

18

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Such objections shall specify the
portions of the Report objected to and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendation is based in whole or in part
upon matters occurring of record at an oral hearing, the objecting party shall promptly
arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge
otherwise directs. A party may respond to another party’s objections within
FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

19